Citation Nr: 21074836 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-37 841 DATE: December 16, 2021 ORDER Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for a thoracolumbar spine disability is denied. REMANDED Entitlement to an initial compensable rating for right ear hearing loss is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to an acquired psychiatric disability is remanded. FINDINGS OF FACT 1. The Veteran's left ankle osteoarthritis was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and a left ankle disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran's thoracolumbar spine degenerative arthritis was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and a thoracolumbar spine disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1963 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision. The Veteran requested a hearing before a Veterans Law Judge on his July 2018 VA Form 9, Appeal to the Board of Veterans' Appeals; however, he failed to report for his scheduled videoconference hearing in October 2021. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition, certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for a left ankle disability The Veteran seeks service connection for a left ankle disability. The Veteran has a current diagnosis of left ankle osteoarthritis and status post fusion with incomplete osseus fusion and residuals as evidenced by the April 2017 VA examination. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran's service treatment records indicate that he sprained and re-sprained his left ankle in June 1964; however, on the clinical examination for separation from service in June 1967, the Veteran's lower extremities are feet were evaluated as normal. Thus, despite left ankle sprains in service, the Board cannot conclude a "chronic" left ankle condition was incurred during service. Treatment for a disorder in service cannot be considered treatment for a chronic disorder unless there is some indication that a chronic disorder exists. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. For a showing of chronic disability in service there is required a combination of manifestations sufficient to identify the disorder, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." In addition, VA treatment records show the Veteran complained of left ankle pain for a few months in September 1999 but was not diagnosed with left ankle osteoarthritis until July 2013, decades after his separation from service and decades outside of the applicable presumptive period. Service connection for a left ankle disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's left ankle disability and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The Veteran underwent VA examination in April 2017 at which time he reported an onset of left ankle pain about four to five years prior, that the pain gradually got worse, and that he had his left ankle fused in 2015. The examiner opined that the Veteran's left ankle condition was less likely as not related to an in-service injury, event, or disease. The examiner noted that the Veteran's left ankle strain appeared to have healed during service and that he developed left ankle pain again around 2012, more than 45 years after military service. To the extent that the Veteran believes his left ankle disability is related to an in-service injury, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires medical knowledge. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiner's opinion. 2. Entitlement to service connection for a thoracolumbar spine disability The Veteran seeks service connection for a thoracolumbar spine disability. The Veteran has a current diagnosis of degenerative arthritis of the thoracolumbar spine as evidenced by the April 2017 VA examination. As noted above, arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran's service treatment records indicate that he reported a sudden onset of left posterior chest and/or back pain four days prior. Physical examination demonstrated tenderness of the left dorsal region on percussion and motion. Impression was muscular pain, rule out pneumothorax. On the clinical examination for separation from service in June 1967, however, the Veteran's spine was evaluated as normal. Thus, despite complaints of back pain in service, the Board cannot conclude a "chronic" thoracolumbar spine condition was incurred during service. VA treatment records show the Veteran complained of back pain in July 2013 and diagnosed with spine arthritis in May 2016, decades after his separation from service and decades outside of the applicable presumptive period. Service connection for a thoracolumbar spine disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's thoracolumbar spine and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303. The Veteran underwent VA examination in April 2017 at which time he reported low back pain which started five years prior. The examiner opined that the Veteran's thoracolumbar spine condition was less likely as not related to an in-service injury, event, or disease. The examiner noted that the Veteran's thoracolumbar spine arthritis was age related and noted that the Veteran denied any major back injuries in the service. To the extent that the Veteran believes his thoracolumbar spine disability is related to an in-service injury, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires medical knowledge. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377 n.4; Kahana, 24. Vet. App. at 428. Consequently, the Board gives more probative weight to the VA examiner's opinion. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for right ear hearing loss In a January 2018 otolayngology note, the Veteran was described as having longstanding and slowly progressive hearing loss on the right. As there is an indication that the Veteran's right ear hearing loss may have worsened since he was last examined by VA in May 2017, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his right ear hearing loss. 2. 4Entitlement to service connection for a right knee disability VA treatment records indicate that in July 2013, the Veteran was seeing an orthopedist for his right knee; in September 2014, he reported that he was followed by an outside doctor who provided treatment for the right knee. As the Veteran has identified relevant outstanding private treatment records, a remand is required to allow VA to obtain authorization and request these records. 3. Entitlement to an acquired psychiatric disability VA treatment records indicate that in March 2015, the Veteran noted having depression due to his disability and not being able to walk. In January 2017, the Veteran indicated that his chronic joint pain was aggravating his mood symptoms. In February 2015, the Veteran reported worsening anxiety secondary to his worsening pain in his right knee. Because a decision on the remanded issue of entitlement to service connection for a right knee disability could significantly impact a decision on this issue, the issues are inextricably intertwined. Thus, a remand for this issue is also required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right ear hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 2. Ask the Veteran to complete a VA Form 21-4142 for private medical providers who treated the Veteran for his right knee disability. Make two requests for the authorized records from any providers identified unless it is clear after the first request that a second request would be futile. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to service connection for an acquired psychiatric disability. Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Olson, Patricia The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.